and upon the presumption that it carries with it a circumstantial guarantee of trustworthiness. Because such evidence is testimonial, both the testifying witness and the source of the testimony are subject to the principles regulating testimonial qualifications. Id. §§ 1610, 1424.
The competence of the witness himself is determined by a number of different rules. It is fundamental that the witness must have personal knowledge of that to which he testifies. 3 Wigmore, Evidence § 691 (3d Ed. 1970). The general rule requires the witness and the defendant to know one another personally. Michelson v. United States, 335 U.S. 469, 478, 69 S. Ct. 213, 219, 93 L. Ed. 168 (1948). Although it is undoubtedly preferable for the witness to be personally acquainted with the defendant, it has been held that the witness need only know who he is. Commonwealth v. Principatti, 260 Pa. 587, 597, 104 A. 53, 57 (1918).
Such flexibility in the rule is reasonable for the witness is specifically prohibited from offering an opinion based upon personal familiarity with the defendant alone. See, Deschenes v. United States, 224 F.2d 688, 691 (10th Cir. 1965); United States v. Kaufman, 429 F.2d 240, 247 (2d Cir. 1970). The value of his testimony lies not in what he knows of the defendant's personal habits, character, family, or business integrity, but what he has heard about his reputation. Shimon v. United States, 122 U.S. App. D.C. 152, 352 F.2d 449, 453 (1965). Application of this rule to the present case supports the defendant's delayed objections to the competence of both Mr. Hoover and Mrs. Rice.
A considerably more rigid rule qualifies the source of the testimony to be offered. To prevent the compounding of hearsay and thereby to ensure that the evidence to be offered has a circumstantial guarantee of trustworthiness, it is required that the sources from which the reputation evidence is derived be themselves adequate. Therefore, the reputation testified to must have its origin in the experience of those who have had direct contact with the party bearing the reputation. Their personal observation is indispensible to its foundation. See Whiting v. United States, 296 F.2d 512, 517 (1st Cir. 1961); 5 Wigmore, Evidence §§ 1610, 1615 (3d Ed. 1940). By this rule, the defendant's belated objection to the competence of Mr. Hoover's testimony and his specific objection to Mrs. Rice's testimony would have firm support.
Closely related to the foregoing principles are two parallel rules. The first relates to the competence of the testifying witness and requires that he reside in the same community as the individual bearing the reputation. Minkow v. United States, 5 F.2d 319, 320 (4th Cir. 1925). Its purpose is to ensure that the witness has personal knowledge of that to which he testifies and to prevent partisan inquiry and report. 3 Wigmore, Evidence § 692 (Chadbourn rev. 1970). The second relates to the competence of the testimony to be offered. Such testimony may only encompass the defendant's general reputation in the community in which he resides. Williams v. United States, 168 U.S. 382, 18 S. Ct. 92, 42 L. Ed. 509 (1897). Although the rule would appear to be a once useful adjunct of the rule requiring that the reputation reported have its origin among those who know the defendant, the rigidity of its application has been criticized. 5 Wigmore, Evidence §§ 1615-1616 (3d Ed. 1940). It has, for example, been invoked to exclude proof of an individual's reputation for integrity "among a limited group such as fellow employees in a particular building". Williams v. United States, supra at 397, 18 S. Ct. at 97; Michelson v. United States, 335 U.S. 469, 481, 69 S. Ct. 213, 221, 93 L. Ed. 168 (1948); United States v. Battaglia, 394 F.2d 304, 316 (7th Cir. 1968).
Since the boundaries of this latter principle are essentially geographical, any purpose it once served would seem better preserved by the rule excluding testimony of rumor (as distinguished from reputation). By this principle proof of general character traits is favored over reaction to particular acts or occurrences, and the consensus of many is favored over the comments of a few. See Moore v. United States, 123 F.2d 207 (5th Cir. 1941). Although each of these latter rules should be as flexible as reason will permit, the application of either in the present case would support the defendant's remaining objections to the testimony of both Mr. Hoover and Mrs. Rice.
Recognizing, however, the flaws in the Government's rebuttal evidence, the question still remains as to whether the defendant was prejudiced by its admission. It is apparent that the evidence of the defendant's bad reputation for being a law-abiding citizen originated within the student body as a consequence of the defendant's dealings with several of its members. The Government attempted to introduce evidence of such contact through the use of unqualified witnesses. However, because the Government did introduce competent evidence of the defendant's dealings with students through the testimony of Charles Folks, any error in the admission of the Hoover and Rice testimony was adequately cured. Samuels v. United States, 397 F.2d 31 (10th Cir. 1968). It was therefore harmless within the Kotteakos standard.
The defendant next complains of a conversation between the Court and Juror No. 1 in the presence of the court stenographer, but in the absence of counsel. During the morning session of the third day of trial, in addition to testifying himself, the defendant offered the testimony of the first seven of his seventeen character witnesses. As the afternoon session was about to commence Juror No. 1, Charles Mast, indicated that he had a question to ask the Court. To determine the nature of the inquiry, the Court temporarily recessed the trial and accompanied both Mr. Mast and the court stenographer into the adjacent corridor. There, Juror No. 1 related that he, as business manager of the Lukens Steel Company Band, had had minor business dealings with the defendant's second character witness, Creston Shoemaker, the Mayor of Downingtown. The business dealings included contracts for summer concerts that had been played in Downingtown. Having felt that it was his duty to report his limited acquaintance with the witness, Juror No. 1 stated that he would endeavor not to let it affect his thinking. The Court terminated the dialogue by assuring Mr. Mast that it had the utmost confidence in his ability to be fair and impartial and to abide by the Court's charge. Upon returning to the courtroom immediately thereafter, defense counsel specifically objected to the conversation being conducted in his and the prosecutor's absence.
It is inconceivable how the defendant could argue that a possibility of prejudice arose from the foregoing events. Absent a plain showing of such prejudice, or its reasonable possibility, such an inquiry and answer will not support a motion for a new trial. United States v. Woodner, 317 F.2d 649, 652 (2d Cir. 1963); Bacino v. United States, 316 F.2d 11, 14 (10th Cir. 1963).
The defendant also complains that the Court should grant a new trial on the basis of an alleged unauthorized communication between a juror or jurors and the deputy marshal sworn to hold them in his custody during their deliberations. From what has been presented to the Court, the facts are as follows: The case was submitted to the jury on Wednesday, May 12, 1971, at 10:30 a.m. The verdict was returned at 2:09 p.m. the same afternoon. Barring time for lunch, the jury's deliberations did not exceed two and one-half hours. On May 19, 1971, seven days later, the present motion for a new trial was filed. Averment eleven set forth the present complaint.
Hearing nothing further from the defendant by June 2, the Court entered an Order requiring the defendant to "file affidavits setting forth with particularity and specificity the bases for the averment No. 11 of the reasons in support of Defendant's Motion for New Trial." On June 17, 1971 defense counsel filed the following affidavit setting forth the basis for the averment:
"On Sunday, May 16, 1971, the affiant, Fred T. Cadmus, III [defense counsel], was informed that the foreman of the Neff jury, Charles Mast, had stated following the trial that after retiring to deliberate and before returning its verdict, one or more of the jurors discussed with the tipstaff, who was sworn to keep them in his charge, their proposed verdict, particularly the right to make a recommendation of leniency, although whether anything else was discussed is unknown; that the said court official advised the jury or juror that the verdict must be only 'guilty' or 'not guilty'. No other information concerning the matter is known to the affiant."